Hurst v. Kirby

• Decision Date: 29 October 1925
• Docket Number: 7 Div. 521
• Citation: 213 Ala. 640,105 So. 872
• Parties: HURST et al. v. KIRBY.
• Court: Alabama Supreme Court

105 So. 872

213 Ala. 640

HURST et al. v. KIRBY.

7 Div. 521

Supreme Court of Alabama

October 29, 1925

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Action by R.W. Kirby against E.L. Hurst and another. Judgment for plaintiff, and defendants appeal. Affirmed.

W.J Boykin, of Gadsden, for appellants.

Hood &amp Murphree, of Gadsden, for appellee.

SOMERVILLE J.

Plaintiff introduced in evidence the official report of a state examiner, regularly made in due course, showing the items of sheriff's fees collected by the defendant clerk, as evidenced by the execution docket kept by the clerk in his office. The report is, in fact, a statement of account between the sheriff and the clerk with respect to the fees in question. Section 746, Code 1923, provides that--

"Such reports shall be public records and shall be prima facie evidence of what they charge."

The effect of this report was to make a prima facie case for plaintiff, and the burden of refuting its findings, or to show payment to plaintiff, was thereby cast upon defendant. The fact that the report does not show the date of each fee collection is not material. It is sufficient if it shows that all items were collected during the period of Hurst's incumbency covered by the official bond sued on, and that is plainly shown.

One of defendants' contentions is that plaintiff kept no fee book in which was entered the items of fees sued for, and that under sections 7266 and 7267 of the Code he is not entitled to claim them in this suit. But plaintiff testified that he kept a book in his office on which was entered every fee earned by the sheriff, and that when his term of office expired he left this book in the sheriff's office at the courthouse. He further stated that he had searched for this book, and had been unable to find it. Moreover, the provisions of the statutes referred to are for the protection of parties who are liable for the payment of such fees, and cannot be invoked by a clerk who has actually collected the fees, as shown by his execution docket, and has them in his possession as clerk.

Counsel for defendants insist that the examiner's report was not admissible in evidence because "there was a variance between the allegation of the plaintiff's complaint and the statement of the examiner referred to." Counsel do not point out in what the alleged variance consists, but the fact, if so, that there were some...